Critics of Tarmac-Delay Rules Fear Re-Regulation

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"I started forced hydration, induced vomiting, and sat with her for the next four hours until we landed. I personally monitored her vital signs every 15 minutes," Pomerantz said in his letter to US Airways, according to Elliott.org.

Think the tarmac-delay issue has been settled? Think again. The U.S. Department of Transportation (DOT) is considering expanding last spring’s rule, which would fine airlines when passengers are stuck on the ground aboard a plane for three hours or more, to include small airports and international flights.

“The situation is much worse than the [official] statistics indicate,” said George Hobica of AirfareWatchdog.com. “We have to include every airport, every type of plane and every type of flight.”

That’s the wrong approach, countered Steve Lott, spokesman for the International Air Transport Association: “If DOT goes ahead with this, they’re going to cause a much larger problem than the one they think they’re trying to solve.”

For its part, DOT won’t announce a final rule until next spring, but you can expect a lot of others to weigh in before then.

Extending the rules on extended delaysThe battle lines were officially drawn last week as DOT received hundreds of last-minute comments on its latest round of proposed air-passenger protections. The proposals cover a wide range of issues — advertising, fee disclosure, denied-boarding compensation — but few point to the adversarial relationship among airlines, passengers and government regulators like tarmac delays.

The proposed rules expand on regulations implemented in April that mandate tarmac-delay contingency plans for domestic flights on U.S. airlines. Under that rule, airlines can be fined up to $27,500 per person when passengers are stuck on the ground aboard a plane for three hours or more.

Not surprisingly, international airlines oppose expanding the rule, citing potential conflicts with international law, the relatively small number of flights they operate to the U.S. and the adverse consequences of any increase in cancellations. “I don’t think getting stranded in a U.S. city for a day or more is necessarily helping passengers,” said Lott.

For Kate Hanni, executive director of FlyersRights.org, the issue is that without an accurate reporting requirement, no one really knows the scope of the problem. Anecdotally, she says that her group’s hotline is now receiving more calls from international flights than domestic ones.

“I suspect that’s because domestic flights that are subject to the rule are being gotten off the tarmac first,” she said. “The international flights are not because there’s no penalty.”

Meanwhile, as the airline industry and consumer advocates press their points of view, two truths regarding tarmac delays remain. Delays of three hours or more for domestic flights are down substantially since the original rule went into effect — there were only three in July, says DOT, compared to 161 during the same period last year — and international flights do present a much more challenging scenario.

Consider, for example, the June 22 flight of Virgin Atlantic 001, which was flying from London to Newark Liberty International Airport in New Jersey when it was diverted to Bradley International Airport outside Hartford, Conn. Landing at 8:30 p.m., the 300 passengers were stuck onboard because Customs personnel had already left for the day. By the time agents made their way back to the airport, it was after midnight.

The incident raises questions as to whether Virgin Atlantic should be held liable for a situation over which it had no control. At the same time, it also underscores calls by consumer activists that smaller and non-hub airports should be required to have tarmac-delay contingency plans in place.

Airports Council International-North America, a trade association, also weighed in on the proposed rules. “ACI-NA strongly supports the need for airlines to coordinate their contingency plans with airports of all sizes,” wrote President Greg Principato, although he drew the line at any requirement that airports adopt their own.

Meanwhile, and even though Virgin Atlantic wasn’t covered by the then-current tarmac-delay rule, DOT responded by announcing that that it would investigate the incident for other rule violations. That investigation is ongoing.

The bigger debate over deregulationSpecific incidents aside, the debate over tarmac delays and contingency plans is arguably a minor talking point in the larger discussion over passenger protections in general: Should those passenger rights be covered under carriers’ customer service plans, which are essentially guidelines of what airlines hope to do, or part of their contracts of carriage, the legally binding agreements between airlines and their customers?

If it’s the latter, says Lott, the result will be more lawsuits, less differentiation among carriers and service levels dictated, not by individual businesses and customer preferences, but by government fiat: “As proposed, this represents the largest re-regulation of the industry since 1978. It just goes too far.”

Not far enough, counters Hanni, who feels the plans need to be both legally binding and crafted in language that DOT approves. “We don’t want the airlines adding ‘lawyer-ese’ that removes that enforceability,” she said. “We don’t want there to be any wiggle words.”

To re-regulate or not re-regulate — that truly is the question. “The government isn’t telling the airlines where to fly and how much to charge [as they did until 1978],” said Hobica. “But some common-sense passenger protections are a good idea. Look what deregulation of the banking industry did for the economy.”